TRP highlights the role of the courts in helping LGB&T young people

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The following article was published in the PILS (Public Interest Litigation Support) Project Newsletter, 3rd Edition, May 2011 www.pilsni.org

Homophobic Bullying and Public Interest Litigation

The Rainbow Project is Northern Ireland’s largest lesbian, gay, bisexual and transgender (LGB&T) support organisation. Our work is grounded in several strands which aim to promote equal rights and opportunities for people who identify as LGB&T. The Education Equality Project is one of these strands. The Education Equality Project is a joint project between The Rainbow Project and Cara-Friend which seeks to ensure that all young people are safe to learn in an environment which respects and protects them, regardless of their sexual orientation. A key component of this project is to work towards ending the blight that is homophobic bullying.

Homophobic bullying is one of the most prevalent forms of bullying in our schools and it takes many forms. Homophobic language is heard by many LGB&T students every day. Violence and intimidation are frequent occurrences for LGB&T young people and the trauma and anguish which this causes them correlates directly with poorer mental health outcomes with young LGB&T people being 5 times more likely to be medicated for depression and 3 times more likely to attempt suicide than their heterosexual peers according to the ShOUT Report commissioned by Youthnet.

The European Convention on Human Rights guarantees in Protocol 1, Article 2 that, ‘no person shall be denied the right to education’ and Article 14 confirms that ‘the enjoyment of rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour…or other status.’

It is clear from the Convention that every child has the right to be educated and that this right cannot be abridged or denied on the basis of a child conforming to an accepted sexual orientation and yet, this is currently happening in schools across Northern Ireland.

In the vast majority of schools in Northern Ireland, from the day they begin school until the day they leave; young people are taught that the only acceptable and normal sexual orientation is heterosexual. As schools generally do not discuss the diversity of sexual orientation, or when they do it is usually in a negative context, they silently confirm that to be straight is normal and to be anything other than straight is abnormal. Or wrong. Or unnatural.

We recognise that prejudice is formed out of fear of that which is different from oneself. Young people in our schools are not taught about LGB&T people and therefore what they know about these people is based on what they have learnt from others and what they hear in the playground. It is this ignorance and prejudice which is the fuel of the homophobic bullying which destroys lives and tears families apart right across Northern Ireland. Our teachers are not properly trained in how to recognise and react to homophobic bullying, lacking the required support and guidance from Headteachers and Boards of Governors. The result is a systemic prejudice against LGB&T people within education and it cannot be allowed to continue.

There is excellent persuasive authority for judicial intervention from other jurisdictions, most notably in the Canadian case of School District No. 44 (North Vancouver) v. Jubran (2005). This case involved a young man who was repeatedly threatened, intimidated and physically assaulted over the course of a number of years. Although the school attempted to defuse the tension by talking with the aggressors and warning them of potential consequences for continued harassment, over the course of a five year pattern of abuse involving homophobic slurs, physical assault, the victim was spat upon, kicked and punched and yet the Court was told that only one detention and two suspensions were imposed. The Court determined that the course of action taken by the school did not comply with its obligations to protect students from harassment and Madame Justice Levine held that ‘a School Board has a duty to maintain a positive school environment for all persons served by it’ and that ‘the School Board had not responded in an effective way to the students’ discriminatory conduct, the Tribunal found that the school staff was pursuing a disciplinary approach that was not effective, and lacked resources to adopt a broader, educative approach to deal with the difficult issues of harassment, homophobia and discrimination.’

Our Boards of Governors have similar duties enshrined in the Education and Libraries (NI) Order (2003) which compels Boards to ‘safeguard and promote the welfare of registered pupils.’ Currently, many Boards of Governors are not fulfilling this duty with regard to LGB&T young people and while the Northern Ireland Assembly lacks the political will to intervene on the behalf of LGB&T young people, one of the most vulnerable groups in our society, it may fall to the courts to finally clarify that education is not a heterosexual institution.